Jane Wakefield: The Net takes on the establishment

Summary:Demon v Godfrey was far from a simple matter of David and Goliath according to Jane Wakefield...

It is the kind of story they make Hollywood movies about: the little guy takes on the big corporation and a David and Goliath courtroom battle ensues.

In this case, the little guy is nuclear physicist Laurence Godfrey, and the big bad corporation is Thus, formerly Scottish Power and proud owners of Demon Internet. But whereas, in the movies it would be a clear cut case of the good guy versus the bad guy, the real life version of the truth is harder to glean.

In January 1997, Mr Godfrey complained to Demon about a posting -- described by his lawyer as "squalid, obscene and defamatory" -- and asked the ISP to take it down. The message had actually appeared in one of the thousands of newsgroups that have sprung up on the Net, in this case a discussion forum dedicated to the political and cultural life of Thailand. Like many ISPs, Demon hosted the newsgroup on its server and was, to Godfrey's way of thinking, the publisher of the material that was causing him distress. The ISP, known by its loyal subscribers as something of an advocate of free speech, refused to remove the posting.

After Godfrey decided to take the matter to the High Court, suing Demon for defamation, he became something of a cause celebre -- hated on the newsgroups for what people saw as an attempt to gag the freedom of the Net, respected by others for daring to stand up for his own personal freedom. At first, Demon entered the fray with all guns blazing, promising to act on behalf of all ISPs and uphold Internet freedom of speech. It claimed that no service provider could be held responsible for the millions of postings made on its servers every day.

However Justice Moreland, the judge presiding over the case, threw a spanner in the works when he dismissed Demon's defence of "innocent distribution", pointing out that as Mr Godfrey had informed the ISP several times about the postings, it was not innocent at all. It was a precedent-setting ruling, putting all ISPs in the dock if they failed to remove content claimed to be defamatory.

The industry reacted with anger, claiming at best the ruling was silly, at worst a dangerous erosion of Internet liberty. At first Demon said it would appeal although it quickly u-turned and claimed it would carry on the case without its "innocent distribution" defence. Last Thursday -- two years on -- it quietly gave in, reading a statement in open court agreeing to pay damages to Mr. Godfrey and apologised for the distress it had caused him.

So a seemingly happy ending, with the little guy winning against the odds. But, unlike the movies, the ending may prove to be just the beginning. While we may glory briefly in the euphoria of a big corporation with all its influence and power, brought to its knees by a relatively powerless individual, the ripples from the case are yet to be felt.

On the one hand, it is wrong that any individual should have to experience distress and humiliation because of the actions of another. Like the grafitti on a school wall telling tales about a pupil, it is unpleasant and offensive. The most important thing is that the grafitti is removed and if it is impossible to find the individual who wrote it, then the school itself should get out a cloth and wipe it away. But, if the author of the remark was determined enough, it wouldn't be difficult to sneak back in the middle of the night and repaint the wall. Again and again and again. Then it becomes a question of how far the responsibility of the school extends -- would it be fair for the injured pupil to blame the school for remarks it had little, if any, real way to stop?

Of course, in the Demon versus Godfrey case, this comparison does not apply. Demon was told of the postings and still refused to remove them and it was this refusal that ultimately told against them. There is no doubt that Laurence Godfrey was the victim of an Internet grafitti campaign. I spoke to him during the case and he was both professionally and personally affected by the remarks. There was more than one posting and taking Demon to court was a final attempt to stop the campaign against him. And in refusing to take the remarks down, Demon made a fatal error.

But, in Demon's defence, it was acting out of an albeit misguided attempt to safeguard freedom of speech on the Internet. Let us not forget that Demon used to be one of the good guys. The first affordable UK ISP, it was respected by its loyal subscribers for standing up for Internet issues. Demon still has mavericks like Richard Clayton, who take public stands against policies such as the government's snooping bill. Although, since Demon was taken over by Scottish Power, Clayton is careful to point out that the views he expresses are his own and in no way represent the views of the ISP he works for. Which is sadly what happens when an innovative and forward-thinking ISP is swallowed up by a large corporation.

These days, Demon has little to say about Internet issues, worried that any comment it makes could affect its share price. Demon has been corporatised and in an ironic way, that could be the ripple affect of the high profile case it fought and lost. Freedom of speech advocates have long argued that any attempts to regulate content on the Net would water down the power of its medium. Under the precedent set by Mr Moreland, Microsoft or Intel could just as easily complain to an ISP as an individual like Mr Godfrey. Microsoft could claim a news story or comment piece was defamatory and many ISPs, afraid of a Demon-style High Court battle, would give in and take the offending content down. Intel could say it didn't like the way the chat about it in a newsgroup was heading and have it banned.

At the end of the day, it comes down to have far we are prepared to defend the principle of free speech. Do we allow hate sites and fascist groups the oxygen of Internet publicity, in order to defend the right of others to criticise more worthy issues?

In America, the belief in free speech overrides everything despite the power of capital. In many ways, the Internet is a 21st century equivalent of a newly-discovered America -- a place where the rules of the old world do not yet apply. Regulation of the Net is recognised as a sure-fire way of stunting its growth and free speech advocates are right to fight for the Internet to be left alone.

It may be a pointless fight. As the Internet becomes a more and more powerful medium for capital as well as for content, it may be just a matter of time before the Net, like Demon, becomes corporatised, globalised and homogenised. The Lawrence case was more than just a case of Demon Internet versus an individual, it was also a small test of the Net versus the establishment.

And the Net lost. I was in the High Court on Thursday and the contrast between the lawmakers and the accused was striking. In an oak-lined room where men still wear 18th century wigs, judgement was made on the most modern of mediums, the Internet. A precedent has been set, and regardless of whether other ISPs are trialled in its shadow, the establishment has gained an important victory. The Internet, it says, is not above the law. Which is fair enough, but I find it hard to imagine the Internet ever getting a fair trial from an institution as outmoded as the British court room.

Demon's pockets are a quarter of a million quid lighter as a result of the case. Perhaps ultimately, the rest of the Internet is also poorer.

Come and read the news comment about 'Dr Godfrey's big adventure' with Ken Young from AnchorDesk UK.

Topics: Networking

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